FAQ’s – New Mexico DWI

Being charged with DWI can be very stressful.  For many, this is the first and only contact they will ever have with the criminal justice system.

For those new to the criminal justice system, it can be pretty scary.  There will be many questions about what to expect, how the DWI court process works, and in the end and most importantly, what are the possible consequences for a DWI conviction in New Mexico.

For others who have had prior criminal or DWI charges, it is equally stressful.  They may have many similar questions related to processes.  However, in these cases, the person is often more most concerned about consequences due to their prior criminal or DWI history.

There are many many questions that will come up.  Though we cannot answer them all here, we will try to address some of the more common questions we get. These FAQ‘s come with a few caveats.

In reviewing these FAQ‘s, keep in mind that every case is different and requires individual attention from an attorney experienced in New Mexico DWI law.  These pages are meant only as an overview and not for legal advice.  There is no substitute for an attorney and it would be exceedingly unwise to try to handle your own DWI defense.  Fortunately, this is not necessary.

Even you cannot afford a private attorney, there are very experienced and capable attorneys at the New Mexico Public Defender‘s Office.  In short, if you have been charged with a DWI, get an attorney now!  If you cannot afford an attorney, contact the Public Defender as soon as possible.

For more reading on DWI and Criminal Defense, you might visit our criminal law blog at:   Albuquerque Criminal Lawyer Blog.


What Happens to my Driver's License in a New Mexico DWI?

The issue of your driver’s license is among the first issues that will come up in your New Mexico DWI case. There are many important deadlines in a DWI case. Among the earliest deadlines in your DWI case involve your driver’s license.

The question of what happens to your driver’s license has a couple of different aspects. The first involves the Motor Vehicles Division (MVD) revocation of your license under the New Mexico Implied Consent Act. The second involves consequences upon conviction.

MVD and Criminal Court Revocations are Somewhat Independent

The two are related but somewhat independent. The MVD revocation may occur and often does, even though the DWI charges are often dismissed or the defendant is acquitted at trial. The consequences following a conviction are distinct and follow only upon conviction. It is important to understand both aspects.

MVD Revocation Hearing

There is a strict 10-day deadline that applies to the MVD revocation. You must submit a Request for Hearing with the MVD on the revocation of your license within 10 days of the DWI arrest. Along with the Request for Hearing, you must include a check for $25.00. You can find the form at the New Mexico Department of Motor Vehicles website.

If you fail to request the hearing within 10 days of arrest, your license will be automatically revoked. There are a number of requirements for license revocation at the hearing but the burden is pretty low on MVD for the revocation.

The critical aspect is that you blew .08 or above, or refused the breath alcohol test. However, if it applies to you, keep in mind that for MVD Revocation, the levels are lower for commercial drivers (.04) and those under 21 years of age (.02).

Revocation Penalties Escalate with Subsequent DWI’s or Refusal of Breath Test

In case you submitted to the breath alcohol test and blew .08, your license is revoked for 6 months on a first DWI offense, 2 years for the second DWI, 3 years for the third DWI and lifetime revocation with a 5 year court review for a 4th or greater DWI. In case you refuse the breath alcohol test, your license is automatically suspended for 1 year even on a first time DWI under the New Mexico Implied Consent Act.

Keep in mind that these revocations occur through MVD under the Implied Consent Act. They do not require a conviction. There are separate and additional penalties for conviction.

Revocation on DWI Conviction 

The revocations following conviction somewhat coincide with the MVD revocation. However, the revocation is couched in terms of a requirement of an ignition interlock device.

In case of conviction, the revocation is more severe on a first time DWI. For a first DWI conviction, there is a one-year revocation. On the MVD revocation, it is only 6 months.

The remainder of the license consequences directly coincides with the MVD revocation: 2 years on a second DWI, 3 years on a third DWI, and lifetime revocation on 4th or higher with a 5-year review by the court.

Ignition Interlock Device

Loss of your driver’s license can be devastating financially. For all of the above revocations, you may apply for an ignition interlock device, which will allow you to drive.

Abide by Interlock Ignition Rules or Face Driving on Revoked License Charges

If you are going to continue driving then it is extremely important to follow the rules regarding the ignition interlock. Failure to follow these rules will result in a charge of driving on a revoked license. This is a very serious charge carrying significant penalties.

In short, the consequences to your driving privileges can be severe. In some cases, the loss of driving privileges can be more disastrous than the conviction, jail time, fines and other consequences.

What is the Difference Between a Simple, Aggravated and Per Se DWI?

DWI can be charged in number of ways from misdemeanor to felony, from simple to aggravated.  The "per se" limits rules will apply to all.
DWI can be charged in number of ways from misdemeanor to felony, from simple to aggravated. The “per se” limits rules will apply to all.

DWI is charged in a number of ways in New Mexico.  DWI can be charged as a misdemeanor or a felony.  Whether felony or misdemeanor in nature, DWI may be charged as a simple DWI or aggravated DWI.

In addition, there is a per se DWI.  DWI is not necessarily charged as per se DWI but it is inherent in the New Mexico DWI statutes.  Per se DWI means that if your breach/blood alcohol level reach a certain level, it is presumed that you were impaired.  The per se breath/blood alcohol level varies depending upon whether you are charged with simple or aggravated DWI.

It is important to understand the laws governing DWI.  Because there are serious consequences for DWI charges which escalate according to the nature of the charges, it is important to seek the guidance of an experienced DWI attorney right away after you have been charged.


Proof of Your Impaired Driving or Blood Alcohol Level Concentration (“BAC”) Can Help Convict You

The DWI/DUI laws are enforced by either proving or providing proof of impaired driving or by proof of a prohibited specific blood alcohol concentration (“BAC”) level above 0.08, which presumes that the driver was impaired and therefore has violated the statutes.

Since driving under the influence (DUI) of drugs cannot be proven by use of a Breathalyzer test, the law allows for providing proof of impaired driving, i.e., a “simple impairment” DWI/DUI. For driving while intoxicated (DWI), the proof is easier, as a quick Breathalyzer test can create the rebuttable presumption of having violated the DWI law, i.e., a “per se” DWI.

Under the Influence Means that Your Driving was Impaired to the Slightest Decree

A “simple impairment” and/or “simple” DWI/DUI violation applies more readily to a driving under the influence of drugs charge, since a court will be looking at whether your driving was “impaired to the slightest decree” due to the use of any drug. Although, a Breathalyzer test can turn a “simple” DWI into a “per se” DWI, it is not necessarily true for a “simple” DUI, since drug tests are not as readily available as a Breathalyzer test. Without a BAC level or a drug test result, the State of New Mexico can still prosecute for a DWI/DUI by proving that your driving was impaired to the slightest degree, by the traffic citations received or by refusing to take the Breathalyzer test.

A BAC of at Least 0.08 Means that You Are Presumed to be Legally Impaired

A “per se” DWI violation, means that if you are stopped by a police officer under suspicion of driving while intoxicated, and your Breathalyzer test shows a blood alcohol concentration (“BAC”) level of at least 0.08, you are presumed to have been driving while intoxicated and therefore violated the statute, without having to prove that your driving was impaired to the slightest degree. You are therefore presumed to have violated the law and it is your attorney’s job to overcome that presumption with your criminal defense.

An Aggravated DWI/DUI Carries Higher Penalties

An “aggravated” DWI/DUI arises under situations, such as when you refuse to submit to the Breathalyzer test, your Breathalyzer test BAC level is over 0.16 or there are other accompanying traffic infractions associated with the traffic stop, such as causing a wreck, or a wreck that involves bodily injury to another person, and can subject you to higher penalties, such as more jail time.

By Having a New Mexico Driver’s License you Consent to Chemical Testing

Refusing to take a Breathalyzer test when you are being investigated for a DWI/DUI is charged as an “aggravated” DWI/DUI, because of the simple fact that when you receive a New Mexico driver’s license you gave consent to the State of New Mexico to measure your alcohol concentration level. Under the Implied Consent Act, in exchange for receiving a New Mexico driver’s license, a driver consents to having their blood alcohol concentration level tested if arrested under suspicion of a DWI/DUI.

You can Refuse Chemical Testing

Although, you have a right to refuse the chemical testing, a refusal will result in an automatic revocation of your driver’s license for a year and a charge of “aggravated” DWI/DUI, which can be proven in court with a showing that your driving was “impaired to the slightest decree.”

Consult With an Experienced DWI/DUI Attorney

As you can see, a charge of DWI/DUI which seems easy and clear cut to defend, can actually be very complicated, and therefore, you should seek competent and experienced counsel to represent you. The attorneys at Collins & Collins, P.C., are experienced in these types of cases and are ready to represent you in these cases.

Can I Complete My DWI Probation in Another County or State?

The metropolitan area encompassed by Socorro, Belen, Albuquerque, Bernalillo and Santa Fe make it quite possible that you may live in one county and have gotten a DWI in another.  Or as it often happens, you may have been vacationing in New Mexico from another state, or simply driving through, and you receive a DWI in the State of New Mexico.

The first and probably the most urgent question you may have at this point is how will you serve probation in Albuquerque (or other town or county) when you live elsewhere?  And on a related note, will the judge force me to stay in Albuquerque to serve my probation?  The answer and the processes for achieving your goal are extremely important for fairly obvious reasons.

Court Order Required for Completion of DWI Probation in Another County or State

You must go through the criminal court process in the county in which you were charged. However, this is a somewhat separate issue from where probation must be served.

Unfortunately, once you have been cited with a DWI, you will have to go through the criminal process in the city or county where you were arrested.  Even if you are from out-of-state, or from another county, you will have to go through the criminal process with the charging court.

But, once you have gone through the criminal proceedings, and you finally find yourself on probation, you can ask the court to allow you to complete your probation in the county or state where you reside.

DWI Probation Services Must be Available in Other County or State for Your Charges

You must petition the court to obtain permission to serve probation in another county or state.

Whether it is community service, alcohol counseling, ankle monitoring or drug and alcohol screening, you can petition the charging court to allow you to complete your probation in the county or state where you reside.

If you live in a more remote area, or a smaller city, your attorney may need to verify that those services are offered where you reside.  There are occasions where the requested services are not available meaning that other resolutions of the case may be necessary to accommodate your residency outside the county where the charges were filed.

Must Inform the Court of Residence Outside County Where Charged with DWI

It is very important that you let the court know that you reside outside the county or state where the DWI was charged.

Even if you move out-of-state or to another county, while your case is pending, you will have to inform that court of your new residence and petition the court to allow you to do your probation requirements at your new location.

Once you are on probation, it is very important to inform the court that you have moved or are moving out-of-state or that you have moved to another city or county, because you may violate your probation if you do not inform the court that you have moved.

During the time that your case is pending and during the time of your probation, the court may limit your travel and you will need specific permission from the court to leave the immediate area of where the court is located.  Violations of these court-imposed terms of probation can result in arrest so it is important to address them with the court in advance.

Must Verify Successful Completion of Probation in Other County or State

No matter where probation is served, verification of completion of probation must be reported to the court where the DWI was charged, and typically that would include proper notice to local probation.

Rest assured that there are probation services close to where you reside, but keep in mind that you still have to complete the probation services they were ordered, such as probation officer monitoring, community service, alcohol counseling, ankle monitoring or drug and alcohol screening.  The probation officer in your city, county or state will need to verify satisfactory completion of the probation.

A probation officer in your city, county or state can still report you to the court if you violate your probation.  As such, it is very important that regardless of where you are completing your probation, that you follow all of the requirements for satisfactorily completing the probation, because even in another city, county or state, the probation officer in your area can still report your violations of your probation.

Seek Experience DWI Defense Counsel

It is important seek the assistance of an experienced DWI defense attorney.  It is equally important that you fully communicate any issues related to residency or the need to complete probation outside of the county in which you were charged with DWI.  This includes informing the attorney of any plans for relocation.

Most judges will not unreasonably deny a request to complete probation in another county or state.  However, there are processes necessary to make this happen and these processes must be followed.

Can I Really Be Convicted for DWI When I Blew Below .08?

In New Mexico, the short and disappointing answer is yes you can be convicted of DWI in New Mexico at breath or blood alcohol levels below .08.  In fact, it happens with regularity.

This is not only disappointing but very surprising for those caught in this situation.  In fact, many law abiding citizens assume that .08 is the legal limit.  They gauge their drinking behavior accordingly.  Many bars and restaurants provide breath alcohol testing devices to protect against driving over .08.  Many individuals buy their own.

Impaired to the Slightest Degree Standard

When all is said and done, despite all the efforts to stay below .08, the .08 level is sometimes rendered meaningless.  The standard for DWI in New Mexico is “impaired to the slightest degree.”  What this means is open to some heated debate.

It might be forcefully argued that this is no standard at all since it basically boils down to a standard of “you are impaired if the officer says you are impaired.”   Though argued with great regularity, the courts including the appellate courts in New Mexico, have found this to be a perfectly acceptable standard no matter how vague and open to abuse that it may be.

Per Se or Presumptive Standard of .08

So you might be asking if the standard is “impaired to the slightest degree,” what does the .08 mean.  Basically, if you blow .08 or above, the presumption is that you are impaired.  It essentially shifts the burden to you to prove that you were not impaired.  This can be pretty difficult and the best way around it is to keep the  the breath card out of evidence if possible.

Once in evidence, it is very difficult to convince a judge that you were not impaired.  Depending on the jury, it can be equally difficult to convince a jury of this fact.  Keep in mind, however, that you are not entitled to a jury on a first time DWI in New Mexico.  So you are likely to be facing a judge on a first offense.

Judge Assignment

As stated, you are not allowed a jury trial in a DWI first offense.  As such, you will be facing a judge.  There are some judges that heartily embrace the “impaired to the slightest degree” standard no matter how weak the evidence of impairment.  Others are much more thoughtful.  It is important to know which kind of judge you have as early as possible.

Specifically, it is important to know right away as you have only 10 days from the date of arraignment to recuse a judge (ask for another judge).   Don’t get too excited about this! You only get one recusal absent extraordinary circumstances.  And more important for consideration, as they say, you might jump out of the frying pan and into the fire.  In short, the next judge you get may be even more enthusiastic about the “impaired to the slightest degree” standard than the first.

These are discussions you should have with an attorney who is knowledgeable of both the DWI standards and the local judges.  You should have this conversation right away.  As mentioned, you have only 10 days to change judges and this can be a very important decision in your case.

Related Reading:

DWI/DUI: The True Standard in New Mexico is Impaired to the Slightest Degree

New Mexico‘s Impaired to the Slightest Degree DWI Standard Has to Go!

Should I Go to Drug Court as Part of My DWI Charges?

This question comes up a lot in DWI cases.  It also comes up in a variety of forms and situations.  The short answer is “Yes, you should go to Drug Court but only if you are ordered.”

First, and foremost, as suggested the answer presumes that you have been ordered to Drug Court.  If this is the case, then you likely have no other options other than jail time.   If you have not been ordered to Drug Court, then you should not volunteer to go to Drug Court.

We will first address an order to Drug Court.  Then we can address why you would not volunteer for Drug Court in the absence of a court order.

Order to Drug Court

The necessity of Drug Court usually comes up in cases of repeat DWI offenders.  It can also come up in aggravated DWI cases where the breath alcohol score is very high indicating a serious problem with both drinking and driving while drinking.  It might also come up in a situation of aggravated DWI which is charged due to an accident. There may be other aggravating factors where the judge and/or prosecutor insist on Drug Court as part of a sentence or plea.

Drug Court as a Condition of a Plea Agreement

This brings us to the next issue.  Drug Court may be a condition of any plea offered by the prosecutor.  The prosecutor does not have to agree to a plea where the conditions that he or she wants are not agreed upon by the defendant.   If you cannot agree to the terms of a plea then you are going to trial.

Approval of Plea by the Judge

Even if a plea is agreed upon, the judge does not have to approve it.  The judge can add Drug Court as a condition to the plea or as part of any sentence arising out of the plea.  If the judge, refuses your plea, then you may have the right to withdraw it. However, this should be contemplated in advance so that the right to withdraw the plea is preserved.

Volunteering for Drug Court in the Absence of Necessity

This brings us to the second issue which is voluntarily agreeing to the Drug Court in the absence of necessity by plea or Court Order.  Drug Court is a pretty challenging program.  There is intense supervision and counseling requirements. There are regular court appearances.  There are regular and random urine tests.

Because of the very stringent requirements of Drug Court, in the absence of a serious commitment to successfully complete Drug Court, there is a significant chance of failure.    If you fail out of Drug Court, then you are going to jail. There is no way around it.

In short, where there is no other option, then Drug Court is a very good alternative to jail.  In fact, it may be the only alternative.  However, if you are not ordered, then volunteering for Drug Court for whatever reason is not a good idea because you may be setting yourself up for failure despite your best intentions.  If you feel the need for the kinds of support that Drug Court offers, there are many other possibilities for counseling, rehab, detox, AA and other such support in the community.

All these issues should be addressed with your attorney as your case proceeds. Fortunately, you do not have to make this decision immediately.  There will be plenty of time as your case winds through the process.  However, when the time comes, there is no substitute for the guidance of an experienced DWI attorney with knowledge of Drug Court.


What are the Penalties for DWI in New Mexico?

Given the high number of serious injuries and fatalities attributed yearly to DWI in New Mexico, the penalties for driving while intoxicated in the state are serious and severe.  The consequences for DWI convictions get more serious with repeat offenses.  The consequences are also move serious for aggravated DWI offenses.

First Time DWI

A first DWI offense is treated as a misdemeanor and has a maximum jail time of 90 days and a maximum fine of $500.  For a first-time aggravated DWI offense, there is a mandatory additional 48 hours jail time.  Defendants convicted of a first DWI will also have their license revoked for one year.  First time offenders will also be required to obtain an ignition interlock license and pay for the costs of installing an ignition interlock system in all of the vehicles that they use for a period of one year.  An ignition interlock system is a device that prevents an impaired or intoxicated driver from operating the vehicle.  A first time offender also faces mandatory screening, DWI school, and a minimum of 24 hours of community service.  The court may also order treatment and probation for up to one year.

Second & Third DWI

Second and third time DWI offenses are also considered misdemeanors.  However, the penalties escalate significantly between the 2nd and 3rd conviction.  The second DWI carries a mandatory minimum of 96 hours and maximum of 364 days in jail.   An aggravated DWI as a second offense carries an additional mandatory 96 hours of jail time.  There is also a mandatory $500 fine with a maximum of $1,000.  Second time offenders will also have their license revoked for two years as well as be forced to serve a minimum of 48 hours of community service.  Like first offenders, second time DWI offenders will also have to submit to screening and treatment and use an ignition interlock device for two years.

A defendant convicted of a third DWI offense will face a mandatory 30 days in jail, and pay fines between $750 and $1,000.  A third aggravated DWI has a mandatory minimum of 60 additional consecutive days in jail.  Third time offenders will also have their license revoked for three years must serve a minimum of 96 hours of community service.  Third time DWI offenders must submit to screening and treatment and use an ignition interlock device for three years.

Fourth & Subsequent – Felony DWI

Fourth offenses and all subsequent offenses are treated as felonies in New Mexico, again with escalating penalties and charges for each additional offense.  Fourth and fifth DWI convictions are considered 4th degree felonies and are punishable by a minimum of six months (4th) and one year (5th) in jail and a maximum fine of $5,000.  Fourth and fifth time offenders will also have their license revoked for life and must submit to screening and treatment and use an ignition interlock device for life.  These offenders may apply to a district court for a restoration of their license after five years.

Sixth, seventh, and subsequent DWI offenses are considered 3rd degree felonies and are punishable by a mandatory minimum of 18 months (6th) to 2 years (7th) and a maximum fine of $5,000.  Like fourth and fifth time offenders, subsequent offenders will also have their license revoked for life and must submit to screening and treatment and use an ignition interlock device for life.  These offenders may also apply to a district court for a restoration of their license after five years.

DWI Accidents

A DWI accident is very serious.  At best, you can be charged with aggravated DWI.  However, the possible charges are much worse.  For instance, a DWI accident resulting in death will typically be charged as vehicular homicide.  Vehicular homicide is considered a 3rd degree felony and is punishable with a maximum sentence of 6 years in prison and a maximum fine of $5,000.  Defendants convicted of vehicular homicide also face an additional four years of jail time for each prior DWI within the last 10 years.

Finally, driving with a license revoked due to DWI is a misdemeanor and punishable by a minimum of 7 days and maximum of 364 days in jail and a mandatory minimum fine of $300.  Defendants convicted of driving with a license revoked due to DWI also face 30 days of vehicle immobilization and one year added to their license revocation period.

In addition to the escalating criminal penalties, there are escalating costs as well.  First, you will find that the attorney fees rise significantly from one DWI to the next.  There are also many court imposed costs beyond the statutory fines.  These will mount quickly.

Contact an Attorney Now!

In short, DWI is extremely costly in terms of criminal penalties, attorney fees, and other costs.  If you are reading this, it is probably too late for the “don‘t drink and drive lecture.”  Instead, you should be contacting an attorney experienced in New Mexico DWI defense who can help you to minimize the fallout from your DWI arrest.  There are some important early steps and early deadlines in a DWI case that you should be aware of to help to make the best of a tough situation.

To read more on these topics, try visiting one of the sections on our website by clicking below:

Will I Go to Jail for First Time DWI?

This question actually suggests a number of issues.  Primarily people ask this question in the context of a first time DWI conviction.   The short answer to this question is “No, there is no jail time for a first time simple DWI conviction.”

However, as with all issues related to criminal law, the issue is bit a more complicated than that.   A first time conviction for aggravated DWI carries mandatory jail time.  Moreover, a first time simple DWI offender can be jailed subsequent to a conviction and it is not unusual that this occurs, particularly in Albuquerque Metropolitan Court where we Collins & Collins, P.C. has the bulk of our DWI cases.

First Offender Program:

The DWI First Offender Program is based in statute.  There are a number of mandatory sentencing provisions under the First Offender Program.  Jail time is not among the mandatory provisions.

The mandatory provisions include such things as DWI school, Victim Impact Panel, community service, ignitions interlock device for one year, and the payment of court and probation costs.  There are a number of other conditions that can be imposed at the discretion of the judge depending upon the circumstances.

Violation of any conditions imposed by the court, whether they are mandatory or discretionary, can and often do result in jail time.  Before we get that issue, we should address the mandatory jail time on aggravated DWI.

Aggravated DWI

Aggravated DWI is a typically a DWI involving a breath alcohol score of .16 or greater.  In other words, a DWI is aggravated if the breath score is twice the legal limit or above.

However, DWI can be aggravated for other reasons as well.  This would include DWI resulting in accidents and injury to another.  Most common, a DWI is aggravated when the suspect refuses to submit to a breath or blood test under the New Mexico Implied Consent Act.

In the event that a person is convicted of aggravated DWI, there is mandatory jail time even on a first offense.  The mandatory jail time for a aggravated first time DWI is 48 hours.

Violations of Conditions of Release:

Every DWI charge will result in conditions of release being set by the court while the case is pending.  A condition of release basically means that these conditions must be met while the case is pending or the defendant will go to jail.

The standard conditions of release include the following:  1) no possessing or consuming alcohol or illegal drugs, 2) no further violations of law, 3) no driving without a valid license (which may include an interlock device following the MVD License Revocation Hearing.  Other conditions may be imposed by the judge depending upon the circumstances including regular meetings with probation and random urine tests.

Violations of the conditions of release are taken very seriously.  They are seldom tolerated.  Repeated violations almost always result in jail time.  If you are jailed on a violation of a condition of release, you can be held in jail until trial or until the case has otherwise concluded.

Violations of Probation (Terms of First Offender Program)

The First Offender Program is designed to give first time DWI offenders a break.  However, the terms of probation are taken very seriously.  Violations of the terms of probation will result in jail time.  Like violations of conditions of release, repeated violations will almost always result in significant jail time.

How long can you go to jail on a violation of probation?  The statute calls for a mandatory 48 hours for the violation of any condition of probation.  In cases of serious violations or repeated violations, you will likely go to for the full 90 days allowed under the statute.

Keep in mind that any violation of probation can result in up to 90 days.  The mandatory 48 hours is a minimum, not a maximum.

If you are facing a first time DWI, it is important to understand all the possible penalties that you may be facing.  Equally if not more important, you need to understand how to avoid those penalties that can be avoided.

The Albuquerque DWI defense attorneys at Collins & Collins, P.C. are here to help. Give us a call or contact us online.


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